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CONTENTS OF THE PROJECTS

INTRODUCTION
OBJECTIVES
METHODOLOGY
STATEMENT OF PROBLEM
HYPOTHESIS
KEYWORDS
MATERIAL
DISCUSSION
 THE TWO MORALITIES

 THE MORALITY THAT MAKE S LAW POSSIBLE

 ALLEGORY OF THE REX

 CONSEQUENCES OF THE FAILURE

 ALLEGORY OF REX IN INDIAN CONTEXT

 CONCLUSION AND SUGGESTION

REFERENCES AND BIBLIOGRAPHY


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INTRODUCTION

One of the most significant contribution to contemporary Natural Law thinking


is the writings of Lon L.Fuller (1902-78).He parted company with much of the
earlier natural law traditions, rejecting Christian doctrines of natural law and
17th and 18th century rationalist doctrines of natural rights. Fuller was a
professor of general jurisprudence at Harvard Law School for many years until
his retirement in 1972. The scope of his writings on law included legal
philosophy, contracts, mediation, comparative law, and legal procedure. As far
as can be determined, Fuller never commented on abortion in his writings. He
believed that law should stand the scrutiny of reason and stressed the
importance of good order .He criticized the views of philosophers such as Hans
Kelsen, H.L.A.Hart, Ronald Dworkin, and Marshall Cohen. Fuller opposed
legal positivism, the idea that law is no higher than a particular authority, that
is, a sovereign state or a rule of recognition, is morally neutral, and is merely an
instrument of external ends such as utility.

His leading work on legal theory, The Morality of Law (1964,1969), has
been translated into several languages and has been used as the text for teaching
legal principles in developing nations. The book advocated a kind of secular
natural law, and it was initially severely attacked by many lawyers and
philosophers. The Morality of Law offers an extended discussion of the
difference between the morality of duty and the morality of aspiration and took
the position that the purpose of law was both.

Fuller concentrated on what is required to make the law work. His


solution is that a legal system, properly so-called must embody what he calls an
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Inner Morality. Since ,morality is clearly central to Fuller’s enterprise, it is


essential to consider how he clarifies the way in which he uses the term.

OBJECTIVE
• To analyze the allegory of the Rex and the eight ways to fail to make
laws.

• To determine whether the eight ways that put the labor of the Rex into
vain exists in Indian legal system.

METHODOLOGY

In this project I used doctrinal method to analyze the concept on Lon Fuller and
the allegory of the Rex with reference to Indian legal system . In this method I
used various primary source of information as well as secondary source. I also
used various Article and Journal book in our library.

STATEMENT OF PROBLEM

The research work is trying to analyze the eight aspects, due to absence of
which the attempts of the Rex to give a proper legal codification to his subjects
went into vain and it is being examined that whether those aspects exist in the
Indian Legal System or not.

HYPOTHESIS

The simultaneous existence of morality in law makes law possible and the
Indian legal system doesn’t contain the basic drawbacks of REX legal
system.

KEYWORDS

1. Generality

2.Publicity
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3. Clarity

4.Consistency

5. Feasibility

6. Constancy

7.Prospectivity 8. Congruence

MATERIAL USED

In this project I used material from the books available in library of our
institution, various journal and Article published. I also use electronic media for
this and take help on www.jstore.com and other web media available on
internet.

DISCUSSION

THE TWO MORALITIES

There is a distinction between the morality of duty and the morality of


aspiration. The morality of duty lays down the basic rules without which an
ordered society is impossible. Essentially, its language is that of the Ten
Commandments, "Thou shalt not." It condemns men for failing to respect the
basic requirements of living in society. A failure to fulfill one or more of these
requirements would be wrong-doing. On the other hand, the morality of
aspiration is the morality of excellence, of the fullest realization of human
powers. A failure to realize one or more of these powers would not be
wrongdoing; it would be shortcoming or a failure to actualize potential.

The law cannot compel a man to fulfill his potential. The work- able
standards of judgment which the law must use can be found only in the morality
of duty. A man cannot be compelled to live the life of reason. Only the more
obvious manifestations of chance and irrationality can be excluded from his life
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by the law so as to create the necessary but not the sufficient conditions for a
rational human existence.

One significant manifestation of the distinction between the two


moralities can be found in our notion of rewards and punishments. An
individual is not praised or rewarded for fulfilling the requirements of the
morality of duty. Here, we are operating at the lower levels of human
achievement and an individual is punished for any failure to fulfill these
requirements. At the higher levels of human achievement, however, an
individual is praised or rewarded for his accomplishment. He is not punished
for a failure to accomplish excellence. When dealing with a violation of the
morality of duty, the wrongdoing is comparatively clear. Thus, the process of
meting out punishments is surrounded with objective tests often listed under the
heading, "due process." However, when dealing with the morality of aspiration,
many difficulties beset any individual or group charged with the responsibility
of determining excellence. The deciders must be care- fully chosen. It is,
perhaps, desirable if the deciders themselves have manifested such excellence at
some time because the judgment they render is essentially subjective and
intuitive. The closer a man comes to the highest reaches of human achievement,
the less competent others become in their ability to judge his performance.

One may envision a moral scale which begins at the bottom with the
most obvious demands of social living. From this bottom point, the scale
ascends with more manifestations of the morality of duty. However, at some
point, the morality of duty ends and the higher demands of the morality of
aspiration begin. Where the dividing line should be placed to indicate that duty
leaves off and the challenge of excellence begins? Controversy over the
placement of this dividing line has dominated the whole field of moral
argument. The controversy has been needlessly complicated by a confusion of
thought. This confusion is based upon the assumption that we cannot know
what is bad without knowing the perfectly good, that is, moral duties cannot be
discerned absent a comprehensive morality of aspiration. This assumption is
shown to be fallacious by elementary human experience. The injunction against
killing does not suggest a picture of the perfect life. Yes, we are very much
aware that no conceivable morality of aspiration can be attained if men kill each
other. Another example is found in the field of linguistics. While the perfect
language has not been realized, we are not prevented from struggling against
corruptions of usage which destroy meaningful distinctions. Thus, with social
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rules and institutions, we can know what is plainly unjust without committing
ourselves to declare with finality what perfect justice is.

THE MORALITY THAT MAKES LAW POSSIBLE

This chapter begins with a lengthy allegory concerning the un-


happy monarch, Rex. The primary concern of Rex was to reform the legal
system of his kingdom which his predecessors had badly neglected. Thus, Rex
attempted in eight distinct ways to create and maintain a system of legal rules.
Each of these efforts contained a serious defect which resulted in failure. There
are eight correlative kinds of legal excellence toward which a system of rules
may strive:

1. Generality: laws must take the form of general rules.

2. Publicity: laws must be published and cannot be secret.

3. Clarity: laws must be comprehensible and not overly vague.

4. Consistency: laws must not contradict one another.

5. Feasibility: it must be possible for people to comply with the law.

6. Constancy: the law must not change too rapidly.

7. Prospectivity: the law cannot be retroactive—it cannot today declare

yesterday’s lawful behavior unlawful.

8. Congruence: the law must be administered and enforced as it is written.


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These eight principles of legality constitute the inner morality of law,


"the morality that makes law possible." They are standards of excellence. They
are arrived at not by reference to any external standard of morality or the
substantive aims of the law. Rather, since law is the enterprise of subjecting
human conduct to the governance of rules, the eight desiderata were distilled
from a realistic consideration of what is essential for this purposeful activity.

The inner morality of law is affirmative and creative in nature make the law
known make it coherent and clear, etc. But it is difficult to realize these
demands in terms of duty. For example, the notion of subjecting clarity to
quantitative measurement presents obvious difficulties. Thus, with the
exception of the second principle, promulgation (which does lend itself to
formalization), the inner morality of law is condemned to remain largely a
morality of aspiration and not of duty. Its primary appeal must be to a sense of
trusteeship and to the pride of the craftsman.

The eight desiderata are not absolute. An occasional departure


from one or more of them may be insignificant or, under some circumstances,
even necessary.

ALLEGORY OF THE REX

This chapter will begin with a fairly lengthy allegory. It concerns the unhappy
reign of a monarch who bore the convenient, but not very imaginative and not
even very regal sounding name of Rex.
Rex came to the throne filled with the zeal of a reformer. He considered
that the greatest failure of his predecessors had been in the field of law. For
generations the legal system had known nothing like a basic reform. Procedures
of trial were cumbersome, the rules of law spoke in the archaic tongue of
another age, justice was expensive, and the judges were slovenly and sometimes
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corrupt. Rex was resolved to remedy all this and to make his name in history as
a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he
failed spectacularly, since not only did he not succeed in introducing the needed
reforms, bur he never even succeeded in creating any law at all good or bad.
His first official act was, however dramatic and propitious. Since he
needed a clean slate on which to write, he announced to his subjects the
immediate repeal of all existing law, of whatever kind. He then set about
drafting a new code. Unfortunately, trained as a lone1y prince, his education
had been very defective. In particular he found himself incapable of making
even the simplest generalizations. Though not lacking in confidence when it
came to deciding specific controversies, the effort to give articulate reasons for
any conclusion strained his capacities to the breaking point.
Becoming aware of his limitations, Rex gave up the project of a code and
announced to his subjects that henceforth he would act as a judge in any
disputes that might arise among them. In this way under the stimulus of a
variety of cases he hoped that his latent powers of generalization might develop
and, proceeding case by case, he would gradually work out a system of rules
that could be incorporated in a code.
Unfortunately the defects in his education were more deep-seated than he
had supposed. The venture failed completely. After he had handed down
literally hundreds of decisions neither he nor his subjects could detect in those
decisions any pattern whatsoever. Such tentative toward generalization as were
to be found in his opinions only compounded the confusion, for they gave false
leads to his subjects and threw his own meager powers of judgment off balance
in the decision of later cases.
fter this fiasco Rex realized it was necessary to take a fresh start. His first
move was to subscribe to a course of lessons in generalization. With his
intellectual powers thus fortified, he resumed the project of a code and, after
many hours of solitary labor, succeeded in preparing a fairly lengthy document.
He was still not confident, however, that he had fully overcome his previous
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defects. Accordingly, he announced to his subject, that he had written out a


code and would henceforth be governed by it in deciding cases, but that for an
indefinite future the contents of the code would remain an officia1 state secret,
known only to him and his scrivener. To Rex' s surprise this sensible plan was
deeply resented by his subjects. They declared it was very unpleasant to have
one's case decided by rules when there was no way of knowing what those rules
were.
Stunned by this rejection Rex undertook an earnest inventory of his
personal strengths and weaknesses. He decided that life had taught him one
clear lesson, namely, that it is easier to decide things with the aid of hindsight
than it is to attempt to foresee and control the future. Not only did hindsight
make it easier to decide cases, but-and this was of supreme importance to Rex-it
made it easier to give reasons. Deciding to capitalize on this insight, Rex hit on
the following plan. At the beginning of each calendar year he would decide all
the controversies that had arisen among his subjects during the preceding year.
He would accompany his decisions with a full statement of reasons. Naturally,
the reasons thus given would be understood as not controlling decisions in
future years, for that would be to defeat the whole purpose of the new
arrangement, which was to gain the advantages of hindsight. Rex confidently
announced the new plan to his subjects, observing that he was going to publish
the full text of his judgments with the rules applied by him, thus meeting the
chief objection to the old plan. Rex’s subjects received this announcement in
silence, and then quietly explained through their leaders that when they said
they needed to know the rules, they meant they needed to know them in
advance so they could act on them. Rex muttered something to the effect that
they might have made that point a little clearer, but said he would see what
could be done.

Rex now realized that there was no escape from a published code
declaring the rules to he applied in future disputes. Continuing his lessons in
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generalization, Rex worked diligently on a revised code, and finally announced


that it would shortly be published. This announcement was received with
universa1 gratification. The dismay of Rex’s subjects was all the more intense,
therefore, when his code became available and it was discovered that it was
truly a masterpiece of obscurity. Legal experts who studied it declared that there
was not a single sentence in it that could be understood either by an ordinary
citizen or by a trained lawyer. Indignation became general and soon a picket
appeared before the roya1 palace carrying a sign that read."How can anybody
follow a rule that nobody can understand?"
The code was quickly withdrawn. Recognizing for the first time that he
needed assistance, Rex put a staff of experts to work on a revision. He
instructed them to leave the substance untouched, but to clarify the expression
throughout. The resulting code was a model of clarity, but as it was studied it
became apparent that its new clarity had merely brought to light that it was
honeycombed with contradictions. It was reliably reported that there was not a
single provision in the code that was not nullified by another provision
inconsistent with it. A picket again appeared before the royal residence carrying
a sign that read. “This time the king made himself clear-in both directions.”
Once again the code was withdrawn for revision. By now, however, Rex had
lost his patience with his subjects and the negative attitude they seemed to adopt
toward everything he tried to do for them. He decided to teach them a lesson
and put an end to their carping. He instructed his experts to purge the code of
contradictions, but at the same time to stiffen drastically every requirement
contained in it and to add a long list of new crimes. Thus, where before the
citizen summoned to the throne ten days in which to report, in the revision the
time was cut to ten seconds. It was made a crime, punishable by ten years
imprisonment, to cough, sneeze, hiccough, faint or fall down in the presence of
the king. It was made treason not to understand, believe in a correctly profess
the doctrine of evolutionary, democratic redemption.
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When the new code was published a near revolution resulted. Leading
citizens declared their intention to flout its provisions. Someone discovered in
an ancient author a passage that seemed apt: “To command what cannot be
done is not to make law; it is to unmake law, for a command that cannot be
obeyed serves no end but confusion, fear and chaos.” Soon this passage was
being quoted in a hundred petitions to the king.
The code was again withdrawn and a staff of experts charged with the task
of revision. Rex’s instructions to the experts, were that whenever they
encountered rule requiring impossibility, it should be revised to make
compliance possible. It turned out that to accomplish this result every provision
in the code had to be substantially rewritten. The fina1 result was however, a
triumph of draftsman ship. It was clear, consistent with itself, and demanded
nothing of the subject that did not lie easily within his powers. It was printed
and distributed free of charge on every street corner.
However, before the effective date for the new code had arrived, it was
discovered that so much time had been spent in successive revisions of Rex's
original draft, that the substance of the code had been seriously overtaken by
events. Ever since Rex assumed the throne there had been a suspension of
ordinary legal processes and this had brought about important economic and
institutional changes within the country. Accommodation to these altered
conditions required many changes of substance in the law. Accordingly as soon
as the new code became legally effective, it was subjected to a daily stream of
amendments.

Again popular discontent mounted; an anonymous pamphlet appeared on


the streets carrying scurrilous cartoons of the king and a leading article with the
title: “A law that changes every day is worse than no law al all.”

Within a short time this source of discontent began to cure itself as the
pace of amendment gradually slackened. Before this had occurred to any
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noticeable degree, however, Rex announced an important decision. Reflecting


on the misadventures of his reign, he concluded that much of the trouble lay in
bad advice he had received from experts.

He accordingly declared he was reassuming the judicial power in his own


person. In this way he could directly control the application of the new code and
insure his country against another crisis. He began to spend practically all of his
time hearing and deciding cases arising under the new code.

As the king proceeded with this task, it seemed to bring to a belated


blossoming his long dormant powers of generalization. His opinions began,
indeed, to reveal confident and almost exuberant virtuosity as he deftly
distinguished his own previous decisions, exposed the principles on which he
acted, and laid down guide lines for the disposition of future controversies. For
Rex's subjects a new day seemed about to dawn when they could finally
conform their conduct to a coherent body of rules.
This hope was, however, soon shattered. As the bound volumes of Rex's
judgments became available, and were subjected to closer study, his subjects
were appalled to discover that there existed no discernible relation between
those judgments and the code they purported to apply. Insofar as it found
expression in the actual disposition of controversies, the new code might just as
well not have existed at all. Yet in virtually every one of his decisions Rex
declared and re declared the code to be the basic law of his kingdom.
Leading citizens began to hold private meetings to discuss what measures,
short of open revolt, could be taken to get the king away from the bench and
back on the throne. While these discussions were going on Rex suddenly died,
old before his time and deeply disillusioned with his subjects.
The first act of his successor, Rex II was to announce that he was taking
the powers of government away from the lawyers and placing them in the hands
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of psychiatrists and experts in public relations. This way, he explained, people


could be made happy without rules.

THE CONSEQUENCE OF THE FAILURE


Rex's bungling career as legislator and judge illustrates that the attempt to
create and maintain a system of legal rules may miscarry in at least eight ways;
there are in this enterprise, if you will, eight distinct routes to disaster. The first
and most obvious lies in a failure to achieve rules at all, so that every issue must
be decided on an ad-hoc basis.

The other routes are: (2) a failure to publicize or at least to make available
to the affected party, the rules he is expected to observe; (3) the abuse of
retroactive legislation, which not only cannot itself guide action, but undercuts
the integrity of rules prospective in effect, since it puts them under the threat of
retrospective change;(4) a failure to make rules understandable; (5) the
enactment of contradictory rules or(6) rules that require conduct beyond the
powers of the affected party; (7) introducing such frequent changes in the rules
that the subject cannot orient his action by them; and, finally, 8) a failure of
congruence between the rules as announced and their actual administration.

A total failure in any one of these eight directions does not simply
result in a bad system of law; it results in something that is not properly called a
lega1 system at all, except perhaps in the Pickwickian sense in which a void
contract can still be said tube one kind of contract. Certainly there can be no
rational ground for asserting that amen can have a moral obligation to obey a
legal rule that does not exist, or is kept secret from him or that came into
existence only after he had acted or was unintelligible, or was contradicted by
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another rule of the same system, or commanded the impossible, or changed


every minute. It may not be impossible for a man to obey rule that is
disregarded by those charged with its administration, but at some point
obedience becomes futile-as futile, in fact, as casting a vote that will never be
counted. As the sociologist Simmer has observed, there is a kind of reciprocity
between government and the citizen with respect to the observance of rules.
Government says to the citizen in effect, “These are the rules we expect you to
follow. If you follow them, you have our assurance that they are the rules that
will be applied to your conduct.” When this bond of reciprocity is finally and
completely ruptured by government, nothing is left on which to ground the
citizen's duty to observe the rules.

The citizen’s predicament becomes more difficult when, though there is


no total failure in any direction, there is a general and drastic deterioration in
legality, such as occurred in Germany under Hitler. A situation begins to
develop, for example, in which though some laws are published, others,
including the most important, are not. Though most laws are prospective in
effect, so free a use is made of retrospective legislation that no law is immune
to change ex post facto if it suits the convenience of those in power. For the trial
of criminal cases concerned with loyalty to the regime, special military
tribunals are established and these tribunals disregard, whenever it suits their
convenience the rules that are supposed to control their decision.
Increasingly the principal object of government seems to be, not that of giving
the citizen rules by which to shape his conduct, but to frighten him into
impotence. As such a situation develops; the problem faced by the citizen is not
as simple as that of a voter who knows with certainty that his ballot will not be
counted. It is more like that of the voter who knows that the odds are against his
ballot being counted at all, and that if it is counted, there is a good chance that it
will be counted for the side against which he actually voted. A citizen in this
predicament has to decide for himself whether to stay with the system and cast
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his ballot as a kind of symbolic act expressing the hope of a better day. So it
was with the German citizen under Hitler faced with deciding whether he had
an obligation to obey such portions of the laws as the Nazi terror had left intact.
In situations like these there can be no simple principle by which to test
the citizen’s obligation of fidelity to law, any more than there can be such a
principle for testing his right to engage in a general revolution. One thing is,
however, clear. Ameren respect for constituted authority must not be confused
with fidelity to law. Rex's subjects, for example, remained faithful to him
asking throughout his long and inept reign. They were not faithful to his law,
for he never made any.

ALLEGORY OF REX IN INDIAN CONTEXT

In order to determine the allegory of rex we can say such things which
make our legal system more different than the Rex legal system..they are as
follows…..

A)Consistency in laws-

In India, there has been no consistency in policies to deal with


terrorism. Political consensus is missing even today. Public debates
have often turned into slanging matches with political and communal
overtones. Coalition politics has only made matters worse. A strong,
responsible political leadership, thus, is paramount to the drafting and
implementation of an effective, strong and permanent counter-
terrorism law. Past experiences with such legislation have been
disappointing. Political expediency killed the earlier two anti-terror
laws, Terrorist and Disruptive Activities (Prevention) Act,1985, 1987
(TADA) and Prevention of Terrorism Act, 2002 (POTA). Despite
being upheld, with modifications, by the Supreme Court of India, while
TADA was allowed to lapse, POTA was repealed. Repeal or lapsing
of laws is seen as weakness on the part of the state.
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Although the legislation was initially intended for two years, the rise
and spread of terrorism in other parts of India forced the government
to renew the law as ‘Terrorist and Disruptive Activities (Prevention)
Act, 1987’ (TADA, 1987).The new law included additional
provisions––harboring or concealing terrorists; for being a member of
terrorist gang or terrorist organization; and for holding of property
derived as a result of terrorist acts. For the last two years, there has
been no specific counter-terrorism law in India

B) Generality in laws-
India has perhaps more laws, good laws, than any other country. It is
also a very “soft State”, abysmally poor at enforcing the laws on its
books, chiefly for lack of political will.
Though the constitution of India has in a general sense laid down
various provisions for protection and improvement of environment
and for safeguarding the forest and the wildlife , there are other
specific legislation for the same . For example :
a)The Indian Forest Act and Amendment, 1984 which is one of
the many surviving colonial statutes. It was enacted to ‘consolidate
the law related to forest, the transit of forest produce, and the duty
livable on timber and other forest produce’
b) The Water (Prevention and Control of Pollution) Act which
establishes an institutional structure for preventing and abating water
pollution. It establishes standards for water quality and effluent.
Polluting industries must seek permission to discharge waste into
effluent.

C) Publication of laws-
In India when a law is enacted by the legislation , at that time it is
questioned many a times for public opinion for the publicity of the
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law which exists in an inchoate state . afterwards when the public


opinion is collected that is sent for re-examination and verification to
different legal experts and even their opinion is circulated to the
public by different media wings.
Then after if , any amendment is needed ,then it is done and enacted
as a master-piece legislation in full compliance of the need and
published in the official gazette with full conformity to the public
needs and circulated to the market.
D) Clarity in laws
In India legislations are enacted by following a very smooth and
delicate paths as a result of that there is no ambiguity in them.
However in case of vagueness and ambiguity various tools of
interpretation can be resorted to bring clarity. Also definition clauses
,explanation clauses ,schedules and appendixes are inserted to these
enactments for explaining the provisions in the Act itself .
However , as a last resort , the main source of the legislations i.e. the
Constitution is resorted to and if found inconsistent , it becomes in
operative and gets repealed.
E)Feasibility
In India the laws are made by legislatures taking into consideration
the customs ,traditions, folkways and mores prevailing and they are
even respected too. As a result of that different personal laws are
prevailing with consonance with the values of the communities .
F)CONSTANCY
In India our laws are not at all easy to change. The laws are either
changed, altered, amended or repealed by due survey and analysis and
according to the need of the time by the able hands of our judiciary.
Our constitution is that is why regarded as the best example of
rigidity and flexibility in nature. Other laws are also of that kind.
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G)PROSPECTIVITY
The laws prevailing in India are prospective in nature and it respects
the old laws even today which were legal, just and fair.
H)CONGRUENCE
The Indian laws are not made in the statute books for ornamentation
of the statutes, but they are implemented too. Different departments,
wings and organs even including NGOs are there to get the laws
implemented by the state. Our federal constitution has given ample
power and autonomy to centre as well as state to implement the laws.
.

CONCLUSION

So, from the various research we can safely conclude that the there
were various defects made by the Rex as a result of which, his all the
efforts to give a proper legislation to his subjects went into vain. To
his utmost tragedy he even died without fulfilling his dream project.
After a long analysis we can draw the following climax that
Generality, Publicity, Clarity, Consistency, Feasibility, Constancy,
Prospectivity and Congruence give essence to an organ of law. In
India our law is in the able hands of our judiciary and supremacy is
vested on the able hands of our worthy judiciary with a clause i.e.
independence of judiciary. Our nation pays all vital aspects in major
position to make our legal system smooth, synthetic and out of
anarchy. So, our legal system is free from the Rexian legal system.
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REFERENCES AND BIBLIOGRAPHY

Book Referred:

The morality of law,Lon L.Fuller

Dias, R.W.M. Jurisprudence, Third Edition, 1970 Butterworth’s, London

Freeman M.D.A. Lloyd’s Introduction to Jurisprudence, Sixth Edition, 1996, Sweet and
Maxwell, U.K.

Patons, G.W.A. Textbook of Jurisprudence, Forth Edition, 1972, Oxford University Press,
New Delhi.(Indian Edition)

Website Referred

www.jstor.com

www.kevinboone.com/lawglos_hart.html

www.user.ox.ac.uk/~lawf0013/hart%20Lecture%206%202001.html